Two key players during the end of colonial rule in Hong Kong have said the British government deliberately excluded mainland China from local extradition laws, contradicting a statement by the city’s current leader as she tries to legalise fugitive transfers to the mainland two decades later.

However, a Security Bureau spokesman maintained that Britain did indicate during the run-up to the return of Hong Kong to the mainland in 1997 that new fugitive laws between the city and the mainland would be needed.

Lam’s administration is facing strong opposition to planned legal amendments which would allow handovers to places the city lacks an extradition deal with, including the mainland, Macau and Taiwan. Tens of thousands have taken to the streets decrying the law which they say could lead to politically motivated prosecutions of Hongkongers on the mainland and scuffles have broken out as the legislature discussed it over the past week.

On Thursday, defending the changes at the Legislative Council, Lam said the mainland was never intentionally excluded from Hong Kong’s extradition laws ahead of the return to Chinese rule in July 1997.

But Patten said that “of course the Hong Kong and UK governments intended to exclude China” when they drafted the extradition law, which the Legislative Council passed in March of that year.

“It would hardly have been very diplomatic to make a song and dance about it. But both Hong Kong and China knew very well that there had to be a firewall between our different legal systems,” he said.

“To pretend that this was a ‘loophole’ is self-evidently untrue and absurd.”

He was responding to Lam’s rejection on Thursday of claims that the mainland was deliberately excluded as a destination for fugitive transfers as the laws were overhauled because of concerns over the different legal systems.

Lam told lawmakers: “It was not what was said, that there were fears over the mainland’s legal system after the handover, or that China had agreed to it. This is all trash talk.”

Instead, she said, the lack of a specific process for transfers north of the border was because the laws were localised from British legislation, which did not include mainland China as a destination.

A Security Bureau spokesman responded on Sunday that the Fugitive Offenders Ordinance was passed by the Legislative Council in March 1997, before the handover. It therefore did not provide for the extradition of criminals by Hong Kong to the mainland.

In the run-up to the handover, the bureau said, the colonial government had already said that it would be likely that new fugitive laws, aside from the Fugitive Offenders Ordinance, governing transfers between Hong Kong and the mainland would be introduced. In a 1997 meeting in the legislature, the government made clear that officials from Hong Kong and the mainland were discussing this issue.

Thus, the bureau said, it showed that the limitations of the Fugitive Offenders Ordinance were not the result of concerns over the mainland’s system.

Professor Lau Siu-kai, vice-chair of semi-official think tank, The Chinese Association of Hong Kong and Macau Studies, did not believe that China wanted extradition legislation with Hong Kong in the run-up to the 1997 handover.

That was because such a politically sensitive law would likely have caused unease among Hongkongers as the city was about to be handed back to Chinese rule, said Lau. From 1993 to 1996, Lau was a member of the Preliminary Working Committee set up to help the Chinese government prepare the city for its return to China.

The Hong Kong government realised full well that this subject would be highly controversial and sensitive given the vast differences between the two judicial and criminal systems

Anson Chan, former chief secretary

Before 1997, China had made requests for Hong Kong to extradite wanted criminals from the city to the mainland.

In 1995, the Chinese government requested that the Hong Kong authorities extradite mainland man Liang Bingzhao, who was involved in a HK$10 million jetfoil robbery. He was eventually jailed for 20 years by a Hong Kong court. He said at the time that he was terrified his jail term would become a death sentence after the handover.

Patten’s former deputy agreed with him. Anson Chan Fang On-sang, who was chief secretary when the extradition law was drafted, said it was never the intention that mainland China be included in any pre-handover exercise to localise Hong Kong rendition or extradition laws.

“The Hong Kong government realised full well that this subject would be highly controversial and sensitive given the vast differences between the two judicial and criminal systems,” she said.

“Hence the undertaking to consult the Hong Kong public widely before any attempt to conclude a formal rendition/extradition agreement with the mainland.

“The fact that 22 years after the handover we still do not have a formal agreement with Beijing suggests that such fears were well founded.”

The city’s former No 2 official said Lam’s dismissive attitude was hardly conducive to a genuine dialogue between the public and the government, or to allaying international and local concerns.

“It would be unconscionable for her to force the proposals through a compliant Legislative Council, where Beijing’s supporters hold sway,” Chan said.

Recently declassified British files revealed the Hong Kong government recommended “uncoupling” the discussion on cooperation with the mainland on civil matters from talks on criminal ones, including the rendition of fugitives.

According to a memo of a discussion in the Executive Council on November 24, 1992, the colonial government set up a working party in December 1991 to consider what arrangements should be put in place between Hong Kong and China before 1997 for legal and procedural cooperation in civil and commercial matters.

The memo recommended raising the issue with the Chinese side at the Sino-British Joint Liaison Group, which discussed transitional arrangements for Hong Kong’s handover.

“Once discussions on this subject start, the Chinese may attempt to extend discussions into the criminal field (e.g. rendition of fugitive offenders) which we would prefer to take separately and later,” the memo read.

“If the Chinese do attempt to link the two we shall simply have to try to uncouple them.

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